WV State Police Settle Case

A case, about which I have twice previously posted about, has now apparently settled, with the WV State Police forking out at least $200,000.  This was a good case from a plaintiffs perspective.  The plaintiff himself is a prominent lawyer.  He was beaten to a pulp, as the insulting photograph of him with black eyes in an orange jumpsuit will attest to.  There really isn’t any excuse for this sort of a beating.  The cops were not facing a giant man on a PCP induced rage, he is actually a rather gentle looking guy.  But most importantly, the cops were caught trying to cover their tracks.  And the cover up is almost always worse than the original wrongdoing.

But what is surprising here, is that none of these officers were charged criminally – at least not yet anyways.  And the ironic thing is that, if criminal wrongdoing could have been proven, under the State’s insurance policy, coverage could be excluded, possibly releasing the State from liability.  Of course there were some allegations against the State Police in general, as well as the Colonel, for some conduct, such as knowingly allowing surveillance cameras to remain inoperable, and probably for insufficient training and complicity in the attempted cover-up which took place.  That may have been the reasoning.  Or, it may have just been a protect-your-own type of thing.

Regardless, you can bet your rear-end that if a non-law enforcement person was involved in a fight and beat someone like that, that person would be charged with a crime immediately.  Its just another example of the gross double standard.  Of course, quoting the Gazette article, the settlement agreement stated that:

The settlement is not an admission of liability, wrongdoing or responsibility for damages, according to the defendants’ written offer. “[L]iability damages or any other wrongdoing are expressly denied [by] these defendants.”

Yeah right.  Trust me, the State Police does not cough up $200,000 because they believe they did nothing wrong.

- John H. Bryan, West Virginia Attorney.

It’s not our fault…. Civil Liability of West Virginia Police Officers/Departments in Pursuit Situations

In this morning’s Beckley Register-Herald, there was an article about a West Virginia State Police pursuit involving an ATV.  Apparently there was undisputedly a pursuit of an officer in a cruiser, chasing a man on an ATV.  Also undisputed, at some point the ATV wrecked and the man was killed.  Where the issue lies is, did the wreck occur during the pursuit, or had the officer abandoned the pursuit, after which the man wrecked on down the road?  And could the West Virginia State Police be liable for a man fleeing on an ATV only to accidentally kill himself in the process?

The important fact is that the driver of the ATV was killed.  He had apparently stolen the vehicle, and thus had fled.  The end result is that this case is much, much different from a scenario in which a passenger on the ATV was killed, or some other potentially innocent third party.  I’m not going to comment on whether I think there is a case there or not for the deceased’ driver’s estate, but here is some helpful information for cases where the facts are slightly different:

This is a portion of the materials I prepared for a continuing legal education seminar that I presented in Charleston, West Virginia earlier this year which specifically deals with situations where innocent third parties are injured in car accidents resulting from police pursuit situations in West Virginia.  This deals with the liability aspects of the state or political subdivision rather than the liability of the fleeing suspect:

Most civil liability cases arising out of a pursuit situation involve collisions between the suspect and a third party.  It is well-settled in West Virginia that “[w]here the police are engaged in a vehicular pursuit of a known or suspected law violator, and the pursued vehicle collides with the vehicle of a third party, under W. Va. Code, 17C-2-5 (1971) (rules, privileges and immunities of authorized emergency vehicles), the pursuing officer is not liable for injuries to the third party arising out of the collision unless the officer’s conduct in the pursuit amounted to reckless conduct or gross negligence and was a substantial factor in bringing about the collision.” Syl. Pt. 5 Peak v. Ratliff, 185 W. Va. 548 (1991); See also Sergent v. City of Charleston, 209 W. Va. 437 (2001).

As with other types of police liability cases, employees of political subdivisions are individually liable for their grossly negligent or bad faith conduct.  However, there’s no need to name them personally, because pursuant to the West Virginia Governmental Tort Claims and Insurance Reform Act, their employer political subdivisions are already liable for damages due to the “negligent operation of any vehicle by their employees when engaged and within the scope of their authority,” W. Va. Code § 29-12A-4(c)(1) and (2), which encapsulates conduct in violation of the the Peak Criteria balancing test described below – which the Court describes as “negligent, wanton, or reckless.”  Note that if a political subdivision employee officer is named personally in the complaint, there may be a circumstantial argument that the plaintiff believes the officer was acting outside the scope of employment – leading the insurer to potentially issue a reservation of rights.  With respect to state employees, i.e., troopers, they may be named personally without the same limitations, and their conduct will be governed by the Peak Criteria discussed below.

Therefore, with respect to state employees, such as State Police officers, the applicable standard of care is W. Va. § 17C-2-5 and it’s interpretation in the Peak Critera.  The standard of care with respect to deputy sheriffs and municipal officers is both the West Virginia Governmental Tort Claims and Insurance Reform Act and W. Va. Code § 17C-2-5.  For these purposes, the phrase “reckless disregard for the safety of others, as used in W. Va. Code § 17C-2-5, is synonymous with gross negligence.” Peak, 185 W. Va. at 552.

West Virginia Code § 17C-2-5 governs the privileges and immunities of police officers who are driving authorized emergency vehicles in pursuit of actual or suspected violators of the law, which provides:

(a) The driver of an authorized emergency vehicle . . . when in the pursuit of an actual or suspected violator of the law . . . may exercise the privileges set forth in this section, but subject to the conditions herein stated.

(b) The driver of an authorized emergency vehicle may:

(1)      Park or stand, irrespective of the provisions of this chapter;

(2)     Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

(3)     Exceed the speed limits so long as he does not endanger life or  property;

(4)     Disregard regulations governing the direction of movement of [or]  turning in specified directions.

(c)     The exemptions herein granted to an authorized emergency vehicle shall apply only when the driver of any said vehicle while in motion sounds audible          signal by bell, siren, or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted flashing lamp as authorized by section twenty-six [§ 17C-15-26], article fifteen of this chapter which is visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a warning light visible from in front of the vehicle.

(d)      The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall these provisions protect the driver from the consequences of his reckless disregard for the safety of others.

In interpreting W. Va. Code § 17C-2-5, the West Virginia Supreme Court adopted the following factors to consider in analyzing whether the pursing officer’s conduct was negligent, wanton, or reckless (“The Peak Criteria”): seriousness of the law violation, whether the suspect escaped during a previous pursuit, whether weapons, drugs, stolen property, or kidnap victims could be present, whether the pursued vehicle is stolen, whether the officer is familiar with the road and its attributes, the weather conditions and visibility, the officer’s degree of caution in relation to the speed of the pursuit, whether pedestrians are present, the amount of traffic, the length of the pursuit, whether the officer “forced the pursuit” by attempting to overtake the suspect or force the suspect off the road, whether the officer fired a weapon and caused the suspect to panic.  Specifically, the Peak Court reasoned:

Trooper Ratliff and Corporal Fulknier were confronted with a serious law violator who had escaped capture in a vehicular pursuit the previous evening. The officers knew of Mr. Akers’ past record and the fact that the vehicle he abandoned on September 14, 1987, contained a weapon and drugs. Both vehicles driven by Mr. Akers on these two days were stolen. The officers were familiar with the road on which the pursuit was conducted. There was good visibility during the chase and no inclement weather which would make the road hazardous. Even though the speed was estimated at between 60 and 100 miles per hour, the officers were careful to slow down when passing cars. There were no pedestrians, and the traffic was moderate. The pursuit lasted only a brief period of time. It does not appear that the officers forced the pursuit by attempting to overtake Mr. Akers or by forcing him off the roadway. Neither officer attempted to fire his weapon, an act which might cause a fleeing suspect to panic. When Mr. Akers crossed the center line and drove into the filling station where the collision occurred, the officers were not in sight.

Peak, 185 W.Va. at 558, 408 S.E.2d at 310.

There also may be a proximate cause issue to deal with where you have a collision caused by the criminal behavior of the pursued suspect.  This issue was discussed by the West Virginia Supreme Court in Sergent v. City of Charleston, 209 W. Va. 437, 549 S.E.2d 311, where the Court noted that, given that proximate cause must be proven in a personal injury negligence action, “[t]he proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have occurred.” Id. (citing Syl. Pt. 5 Hartley v. Crede, 140 W. Va. 133 (1954), overruled on other grounds).  But, “a tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.” Syl. Pt. 13, Anderson v. Moulder, 183 W. Va. 77 (1990).  But, “generally, a willful, malicious, or criminal act breaks the chain of causation.” Yourtee v. Hubbard, 196 W. Va. 683, 690 (1996).

In the Sergent case, the Court held that the intervening criminal acts of “pursuing undercover officers, firing at them, fleeing from the police at high speed, and swerving off the road and onto the berm” were intervening acts which were not foreseeable by the officers involved, thereby “breaking the chain of causation which originally began with their arguably negligent conduct and relieving them, and their employers, of any liability.” Sergent, at S.E. Page 320-21.

Note, in the Sergent case, the plaintiff had proffered an affidavit written by a Maryland State Police officer giving an opinion that, based upon his professional experience, that the actions of the defendant officers

“departed from the standard of professional police conduct, so as to constitute gross negligence, and wanton and reckless conduct on their part, which proximately contributed to the incident causing the death of David Sergent, to include, but not necessarily limited to . . . their high speed pursuit . . . without breaking off the same prior to reaching the congested area; and by otherwise failing to utilize accepted national standards for bringing a fleeing suspect’s vehicle to stop . . . [f]ailing to abide by the Charleston Police Department’s own policies and procedures pertinent to: a. Planning and executing their apprehension of the suspect Jerome Thomas; b. The protection of life during vehicular pursuit; c. Breaking off vehicular pursuit for the public safety; and d. Rendering aid to an injured pedestrian . . . 6. Their failure to abide by and adhere to standards of professional police conduct, such as those contained in the International Association of Chiefs of Police, Inc., Model Policy on Vehicular Pursuits.”

The Court held that no rational jury could find that the conduct of [the officers] . . . was wanton or reckless.  Regarding Sergeant Miller’s affidavit, the Court noted that:

The bulk of Sergeant Miller’s affidavit concerning the officers’ conduct during the vehicular pursuit amounts to nothing more than mere allegations. The affidavit opines that the officers failed to follow applicable local, national and international police standards and failed to protect life during the vehicular pursuit. But without pointing to specific tortious conduct and showing how this conduct caused the suspects’ collision with the decedent, these allegations are wholly insufficient to support a negligence action. Stripped of these allegations, the appellant’s claim is essentially that it was negligence for the officers not to terminate their pursuit prior to the decedent’s death. We reject this claim as being contrary to our law.

Sergent, at S.E. Page 320-21.

- John H. Bryan, West Virginia Attorney

Ashcroft v. Iqbal and Supervisory Liability in federal civil rights actions

As was discussed at Crime & Federalism, there was a recent US Supreme Court decision – Ashcroft v. Iqbal – which drastically changes a component of most civil rights actions – “supervisory liability.” Generally, when police officers/departments are sued for civil rights violations under federal law (42 USC 1983), it is generally alleged that the supervisors are liable for the actions of the subordinate officers.  It used to be that this could be proven without actually having to prove that there was, for instance, a memo issued by the supervisor to engage in a civil rights violation.  It could be proven by showing any type of ratification or acquiescence.

In in City of Canton v. Harris, the Supreme Court held that supervisory liablity may attach where “policymakers were aware of, and acquiesced in, apattern of constitutional violations.”  But in Aschcroft v. Iqbal, the Court ignored Canton and held that:

[Plaintiff] argues that, under a theoryof “supervisory liability,” petitioners can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” That is to say, respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of “supervisory liability” is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeed sof their agents. In a §1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term “supervisory liability” is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.

So now you have a situation where the Court says that supervisors will be accountable for their own conduct, but where they are not actually liable for their own conduct.  Yes, if they taser a 90 year old grandmother who is handcuffed in the back of a patrol car, they will be liable for that.  But if through inadequate supervision (hence the term “supervisor”) they allow their subordinates to do so without stopping them or otherwise “supervising” them, they are not accountable.

Regardless, this probably will not make much difference here in West Virginia since if you ask most defense attorneys in West Virginia, they can’t recall one case of a plaintiff ever even actually recovering on grounds of “supervisory liability” in a federal police liability action.  It’s just too much of an ancillary issue and too difficult to prove in most cases.

- John H. Bryan, West Virginia Attorney.

NC Case Illustrates Abuses of Inmates

Probably the most vulnerable among us are those who are incarcerated.  I’m all for law and order, as well as punishment, but very few of those incarcerated actually killed somebody or are otherwise going to spend the rest of their lives there.  Many of them haven’t even been convicted of anything yet, they just don’t have the ability to bond out prior to their trial.  Many times these people are physically abused by correctional officers who have the ability to run roughshod over the population.  And people don’t care because they view them as criminals.  

For instance, there was a North Carolina case that just popped up in the news, which captured the beating of an inmate on video – leading to a civil lawsuit.  But if it were not videotaped, nobody would believe it.

In West Virginia, we have some of the worst jails in the country.  I’m not talking about the prisons, but the jails – places where people go who are awaiting trial, or who were sentenced to a short sentence of incarceration.  It seems like every other day there is a correctional officer being fired for sexually assaulting inmates, or dealing drugs with inmates.  And these are just the one’s who get caught.  I’ve heard countless stories from different clients of the abuse perpetrated by guards.  And most of them are almost identical, despite the fact that these people had never met each other.

Don’t be surprised if the Department of Justice announces an investigation….

 - John H. Bryan, West Virginia Attorney.

Are civil defense attorneys in WV amicably-challenged?

Of course, as a civil plaintiff’s attorney/ criminal defense attorney, I have encountered some civil defense attorneys out there who were nice people.  But it seems that more and more I encounter those who are, to be kind, “amicably-challenged.”  I’m not talking about the small-town attorneys across West Virginia who somehow get along with each other perfectly well, I’m talking about the “big city” (Charleston, WV) attorneys who think they are “God’s Gift” to the practice of law.  It’s like they don’t realize that the real big-city attorneys in D.C. and elsewhere consider them the small-town yahoo attorneys.

When I was working for the DOJ in D.C., the running joke was about attorneys like this who practice in “state courts.”  They used to laughingly read their briefs and memoranda, commenting on the poor quality.  Of course, I don’t subscribe to that type of arrogance. And I understand that, now being in the real world of the “state courts,” results – and not style or elegance – are the only thing that matter.  And sometimes a somewhat sloppy and to-the-point style can be the most effective.

I have heard it said from some of the prominent West Virginia defense attorneys who represent government agencies or officials, that other similarly-situated defense attorneys in other states have commented to them that they represent public agencies and officials, and therefore they represent the people, and therefore, they should be as transparent as possible.  This was in regards to whether or not to voluntarily hand-over sought discovery materials in civil actions against state or local government.  But the response by the West Virginia defense attorneys was, “hell no, we’re not handing over anything that we don’t have to.”  And apparently – at least according to them – they haven’t.  Not in any case.

For instance, in a prior post, I detailed one such defense attorney’s tactics of withholding important information, which landed his client sanctions in the form of attorney’s fees.  This same attorney, just yesterday, purposely noticed a deposition of my client in a county/location, which we had previously-agreed would not be the county/location of the deposition.  My last communication to him was something to the effect of, “okay, we can take the deposition on such and such dates, but due to my schedule and my client’s travel requirements, it has to be either in location A, or B, but absolutely not C.”  He said, “okay.”  The next day, I get a notice of deposition, for location C.

Why do they engage in this behavior?  Is not the public entitled to anything and everything related to government?  Certainly there is no national security interest to be protected in cases such as these.  What are they hiding?  Alan Dershowitz said that “the defendant wants to hide the truth because he’s generally guilty.  The defense attorney’s job is to make sure the jury does not arrive at that truth.”  Of course, he was talking about criminal defense attorneys, but it still rings true.  Is it proper for a West Virginia law enforcement officer or agency to, after being sued for allegedly improper conduct, hide the facts of the alleged conduct?  Where in that scenario is the public being represented or protected?  

And doesn’t the public deserve representation that is open and amicable?  Can they not just call up their opponent and say, “hey, I would like to have the deposition in location C.  Let’s work it out.”  Or, why not say, “hey, is this date and time good for you for a hearing on such and such?”  Almost every other non-big-shot lawyer in West Virginia does this.  And most get along fine, fight it out, and end the day as friends.  But these big-shots make a game out of scheduling hearings for dates that they know their opponents are unavailable, and then they oppose any motion to continue.

For instance, several years ago, my son was a new-born, and had to go back to the hospital due to a high-fever.  Of course, I wanted to be with my wife and son in the hospital.  One of these jerks set a hearing, knowing I would be in the hospital.  When I found out, of course, I was enraged.  I called him and he refused to voluntarily move the hearing.  My office filed a motion on my behalf to continue.  He opposed it.  Of course, the judge granted the motion and continued the hearing.  Classy lawyer huh? 

And this behavior isn’t limited to those civil defense attorneys representing government agencies.  They are encountered frequently in personal injury litigation.  I guess you have to be of that mindset when your goal is to stop an injured victim from getting the compensation they deserve.  Part of their game is to be a real jerk to the client during their deposition.  They try to upset them, to rile them up, to make them so upset at having filed a claim against their client – the insurance company, they they regret it and lose the will to go on.  Is that the way to win?  I don’t believe so.

So how should mere mortals such as myself deal with these big-shots?  Maybe the best strategy is to do as Sun Tzu advised,and  ”pretend inferiority and encourage his arrogance.”

I should also insert a caveat here that, the real big-shot attorneys, the one’s who’s names can be found in large letters on the outside of fairly large – or actually large – buildings, do not fit this mold in my experience.  They have been among the nicest, and most respectful, attorneys I have encountered – both socially and as opponents.  True classy lawyers.  And I think it proves my point that their names ended up on those buildings – not through behavior as is discussed in this post – but rather through respectful behavior and intelligent lawyering.  Kind of like speaking softly and carrying a big stick.

And less I anger some personal injury defense attorneys out there who are truly good people and quality lawyers, I also hereby insert the caveat that there are a few out there.  I have had as opponents those who sympathize for my clients and who reasonably attempt to get their insurance company clients to offer reasonable compensation for injuries if it is deserved.  I have encountered those who are respectful and who are basically friendly.  But that is, at least in my opinion, the exception for the big-firm Charleston attorneys who venture out into the wilds of West Virginia dealing with us small-town yahoo local yokels.

 - John H. Bryan, West Virginia Attorney, and all-around nice guy.

Personnel File Discovery Issue Litigated – another helpful plaintiff’s opinion

There was in interesting three part series in the Charleston Gazette’s “Watchdog blog,” “Sustained Outrage” by Andrew Clevenger, focusing on a civil lawsuit against the West Virginia State Police on behalf of Charleston attorney Roger Wolfe – a case I posted on awhile back.

Part 1 deals with a FOIA issue that popped up in that case.  Law enforcement agencies (or rather their defense counsel) do not want to hand over the contents of internal investigations of law enforcement officers, citing concerns over sustaining the integrity of the internal investigation process.

Wolfe’s attorneys made a discovery request for those documents, and the WVSP objected claiming that under a Freedom of Information Act Request (FOIA), those documents would be exempt from disclosure.  However, Cleavinger quickly points out that:

Except…

A state Supreme Court ruling in a 2000 case, Maclay v. Jones, SPECIFICALLY addresses theVERY ISSUE of police records and civil litigation. Here’s what the syllabus point says:

The provisions of this state’s Freedom of Information Act, West Virginia Code §§ 29B–1 to -7 (1998), which address confidentiality as to the public generally, were not intended to shield law enforcement investigatory materials from a legitimate discovery request when such information is otherwise subject to discovery in the course of civil proceedings.

But Andrew, that’s a STATE case. The rules are different in FEDERAL court, right?

Wrong.

U.S. District Judge Charles H. Haden II, in a 2003 ruling in the case Floren v. Whittington, reached the same conclusion. He even cited the Supreme Court’s Maclay opinion.

Cleavinger then hammers the last nail in the coffin, pointing out that:

Virginia Lanham should remember this ruling, as she was one of the two attorneys fromShuman, McCuskey & Slicer who represented some of the defendants in the Floren case. (So should Michael Mullins, who represents Trooper Green in the Wolfe suit; he defended former Dunbar Police Chief Earl Whittington in Floren.)

This case is pending in federal court.  The presiding judge issued a ruling in an eleven page opinion  - by the way this is another helpful opinion for any plaintiff’s attorneys litigating this issue – calling the WVSP’s objection to the discovery request “unpersuasive” and “unconvincing” and even ordered the WVSP to pay Wolfe attorney’s fees for their improper objection and refusal to produce the personnel filed, etc.

Let’s see if the defense counsel try to use these objections in state court….

 - John H. Bryan, West Virginia Attorney.

“Handling the Police Liability Claim” in West Virginia CLE

I am presenting the plaintiff’s portion of a continuing legal education seminar entitled “Handling the Police Liability Claim” in Charleston, West Virginia on March 27, 2009 at The Summit. I am presenting an overview of state law involving civil actions against police departments and officers, as well as an overview of common liability issues. Among the items discussed will be forms of immunity, criminal procedure rules, state case law, and state law causes of action. I probably will also discuss the significance and procedure of the Department of Justice’s pattern or practice investigations of police misconduct.

There also will be two seasoned defense attorneys there discussing an overview of federal law, an overview of the police internal investigation and disciplinary process, the filing of a state civil action, and the defending of a police liability claim. I am really looking forward to hearing their viewpoint and strategies for defending these cases.

You can register or find out more information on this CLE by calling 1-800-930-6182, or by visiting NBI’s website.

– John H. Bryan, West Virginia Attorney

Police and Governmental Liability Case Filed against the State and Pocahontas County

Here is a copy of a police liability/ governmental liability lawsuit that I filed last week against various agencies of the State of West Virginia, Pocahontas County, and several private corporations and individuals – including Snowshoe Mountain – on behalf of Brent Carter Flanary.  Since the case is obviously pending, I can’t comment on the facts other than to summarize what is in the pleadings, which are lengthy.  This case is about a man who had everything and ended up with nothing.

 The Complaint alleges that Mr. Flanary, who had a condo at Snowshoe and was going through a bitter divorce, was forced “off the mountain” by Snowshoe officials, with the help of local and state law enforcement – all of whom were communicating with Mr. Flanary’s ex-spouse.  During this process, Mr. Flanary suffered imprisonment, both in a jail and in a mental hospital, for over a month’s time, was beaten, sexually assaulted, attacked with gas grenades, tasers, German Shepherds, and fists – all over allegedly being publicly intoxicated, for which incarceration isn’t even a potential punishment (1st offense).  None of the aforesaid “use of force” incidents were in any way memorialized in a police report or “use of force” affidavit.  Instead, they were covered-up until after the expiration of the one year statute of limitations for false arrest and false imprisonment.  Additionally, much of the conduct underlying these allegations were videotaped.  One of the video tapes emerged nearly two years later, conveniently missing the relevant footage at the end of the digital footage (and also after the lapsing of the aforesaid statute of limitations).  Another video tape has yet to emerge.  But this didn’t stop the prosecutor – and now disbarred assistant prosecutor – from attempting to bring Mr. Flanary to trial on the criminal charges (without production – or even admission of the existence of – the video tapes).

You may not want to take all the time necessary to read the entire document.  However, this Complaint may be useful to other West Virginia attorneys who are facing – or considering –  police liability or governmental liability cases.  The area of law is extremely complex and tricky, and there’s not a whole lot out there to review prior to filing your own case.  A considerable amount of research went in to the drafting of this Complaint, including the review of just about every police liability case filed in West Virginia in the last five years.   – John H. Bryan, West Virginia Attorney

UPDATE:  State Journal story on the Flanary case posted 1/8/09.

                     Pocahontas Times story also posted 1/8/09.

View this document on Scribd

BREAKING NEWS: “Cattlegate Cons” Sentenced

[Note: at the polite request of innocent family members, I replaced the name of the least culpable defendant with ****.]

Surprisingly, it appears that I am the first to break this story – that the “Cattlegate Cons” were sentenced this morning by U.S. District Court Judge Thomas E. Johnston as follows:

O’Brien was sentenced to 97 months of active incarceration and 3.4 million dollars in restitution.

Henthorn was sentenced to 9 months of incarceration and a $75,000 fine.

***** was sentence to 5 months of incarceration and a $50,000 fine.

UPDATE: Apparently now there is a Charleston Gazette article confirming this now online.

ANOTHER UPDATE: The Register-Herald has now published a lengthy article on the sentencing yesterday.  Reporter Christian Giggenbach noted in the article that Judge Johnston made some interesting observations about the case during the sentencing hearing.

Johnston also railed on Henthorn, 46, of Lewisburg, for abusing his position of trust in the banking community. He also insinuated this was probably not the only illegal act Henthorn had committed.

“You were living a privileged life and you threw that away,” Johnston said. “This is an example of what can happen when you allow greed to overcome you.”

Henthorn also apparently attempted to get his probation officer to remove negative letters that were going to the judge.

Former FNB board member James C. Justice II of Beckley was among family and church members who wrote letters in support of Henthorn. One document filed by a court official indicated the defendant called his probation officer on June 4 and asked her if “she would remove the negative” letters from his support file.

“The probation officer responded she would not do so … Mr. Henthorn was obviously upset by this answer and ended the conversation soon thereafter,” wrote U.S probation officer Peggy Adams.

Can you believe the arrogance of this guy?  Judge Johnston also questioned why First National Bank of Ronceverte was suspiciously absent from this entire ordeal – despite the fact that their President and Board members caused this whole mess.  According to the article:

Johnston also asked a rhetorical question about Henthorn’s former employers.

“I’m puzzled by the fact that First National Bank has not participated at all in this hearing,” the judge said. “I expect the whole story has yet to be told.”

However, there was a former board member and one former president of First National Bank there supporting Henthorn and *****, respectively (see Justice above).  According to the article:

****** had about 15 friends and family members present for the hearing, including former state Commerce Secretary and ex-FNB president Tom Bulla, who Johnston vocally noted had come to support ******. Johnston said individuals filed more than 100 letters of support for ******, “the most I’ve ever seen in a case.”

So, “FNB” was not completely absent, they were represented by former officials – who were there to ask the judge to be lenient.  I would note that one of those former officials himself resigned from the board only shortly before ***** and Henthorn themselves resigned from “FNB,” which was reported publicly, but not explained.  Don’t you just love banks?  Their only motivation is money, and even when their hands are publicly caught in the cookie-jar, they can just switch presidents and board members, and continue on foreclosing on people’s homes who do not have connections to the Board, and making sweetheart loans to crooks like O’Brien, who do have connections to the Board.  For too long citizens have been abused by bank boards using their positions to help their buddies and harm innocent folks.  A bank would slit your throat if they thought they could make a buck.  And lawyers get a bad name….  

To *****, Judge Johnston had this to say:

“You participated in a sorry effort to cover this up … which almost resulted in an obstruction charge,” Johnston said. 

“Is this the way business is done in Greenbrier County? By being present when a bribe is slid across the table to a bank president?

Johnston then asked why ***** would have risked so much by setting up the bribes, but then not receive any money in return. Johnston also suggested this was not ***** first brush with illegal activity. Forbes told the court ***** turned down bribe money when approached by O’Brien.

“Why would a man of your experience get involved with this?” Johnston asked.

Lastly, the Register-Herald article noted that the case is still being investigated, and that the defendants will most likely enter prison within the next 30 to 45 days.  It will be interesting to see whether Judge Johnston is right that “the whole story has yet to be told….”

Note: There also is a new Charleston Gazette article this morning.

- John H. Bryan, West Virginia Attorney.

Update on Greenbrier County “Cattlegate” Cons

The Register-Herald published a rather lengthy and informative article about Greenbrier County’s “Cattlegate” scandal this morning. I have posted on this matter several times thus far, here, here, here, here and here, and I have noticed a lot of interest in this case from the sheer amount of search engine traffic directed to my site from searches about these individuals. I suppose that some people were relying on me to post an update to this matter since the sentencing was supposed to already have happened. But I really didn’t have any idea what was going on. But, I knew that Register-Herald reporter Christain Giggenbach was on top of it, so I need only wait until he published an article, which I knew he surely would – and this morning he did.

Apparently the sentencing was supposed to have taken place this morning, but it was continued, though there were no motions filed by either the prosecution or the defense. Well why was it continued? Apparently these angelic creatures have turned stool pigeons and are collaborating with authorities in investigating other individuals. But since all these canaries are proven liars, I’m not sure what their help is worth, and investigators better not give their words more than a micro-ounce of a grain of salt. The history books are full of tragedies which have occurred through the utilization of this type of snake-in-the-grass testimony. For example, see this post from Glen Graham at the Oklahoma Criminal Defense Blog.

The sentencings were continued to October 17 at 10:30 a.m. before U.S. District Court Judge Thomas E. Johnston in Beckley’s Federal Courthouse.

So what kind of sentences are they looking at? A lot of people have commented to me that this bunch is going to get away with probation, but that will not happen. They may however, get some type of home confinement, or mixed sentence. With respect to O’Brien, a presentencing memorandum filed by Assistant U.S. Attorney L. Anna Forbes recommended a prison sentence up to 10 years, but “indicated the defendant has provided more information about possible criminal conduct of others who may have filed claims in his multi-million dollar bankruptcy case.” Lastly, she writes to the Court that “a sentence within the advisory guildine range of 97 to 121 months of imprisonment is appropriate.” So fear not, even with his sleazy finger-pointing, he will be doing time.

With respect to Henthorn and *****, the AUSA recommended 6 to 12 months, while their lawyers are arguing for home confinement or a mixed-type of sentence – and they are apparently strenuously snitching as much as the feds will allow, in order to get what they want. Mind you, that all of these defendants already snitched on each other – one even reportedly wearing a wire in a conversation with the others.

I know that there are a lot of people out there, in Greenbrier County, Monroe County – and across the fruited plain – who want the Judge to stick it to them. The AUSA noted in her memorandum that:

“One of the victims is a single-mom with a couple children in college, another is a Virginia cattle farmer with a small farm who lost so much money and was so ashamed by his financial predicament that he could not, for a long time, bring himself to tell his wife about what the defendant had done,” Forbes wrote. “Many of the victims attempted to pursue claims in bankruptcy, a process that left some with unsatisfactory settlements, large legal fees and a sense, because of the perceived misconduct by other creditors, that they had not been treated fairly by the bankruptcy system.”

So this is a great group of guys. Real quality people, and I wish them luck on the 17th.

- John H. Bryan, West Virginia Attorney.

Charleston Lawyer Sues WV State Police For DUI Arrest Beating

As reported in the Charleston Gazette today, Charleston lawyer, Roger Wolfe, who is a “senior labor and employment lawyer” with Jackson Kelly, was arrested on suspicion of DUI on June 17, 2007. Apparently he was taken to the South Charleston state police “barracks” (again, why do cops like to pretend that they are some type of pseudo-military), and when he smiled at a female trooper, she told him that she would wipe that smile off his face, and had a male cohort take him into an adjoining room. He was beaten so fiercely that he leaked cranial fluid out of his nose.

Then, as if to add insult to injury, the emergency room doctor allowed a trooper to come in and question him while he was in-and-out of consciousness, in order to cover their tracks. For instance, he was supposedly asked, “when you were speaking with the female trooper, do you remember trying to kiss her?” and “how did you get that knot on your head.” If all he had was a knot on his head, then why was he in the emergency room? And why did he spend a week in the hospital with “potentially life-threatening injuries?” What if he did try to kiss her? Is that worth the man’s cranial fluid on the floor? I would hope that other female law enforcement officers are embarrassed and ashamed of this…

Good luck to Mr. Wolfe. The sad thing is that had this guy not been a lawyer with a powerful firm, probably nobody would believe him. This matter better be under investigation by the state, and by the feds. These crooked cops deserve to be stripped of their badges and locked up with their prior arrestees.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Contractor Prosecuted in Raleigh County – and thats a good thing…

From the Register-Herald today:

Matthew Peelish, a Raleigh County contractor, pled guilty to 3 counts of felony obtaining goods by false pretenses for taking money from people and not completing the work, and for obtaining materials from local merchants on an account and refusing to subsequently pay. The Court held him to task and sentenced him from 2 to 20 years.

This is extremely common here in Monroe and Greenbrier county, yet no one is ever prosecuted for it. Everyday people are prosecuted for some ridiculous things, and in these situations, you have real victims that lost real money. Yet 9 times out of 10, they have to resort to a civil action, which leaves them trying to collect a judgment years into the future, or worse, from a trustee in bankruptcy. The problem often cited by prosecutors is that it is difficult to show the requisite intent (intent not to pay at the time the goods are taken or money accepted) to prove the charges. But then again, since when do judges or juries hold prosecutors to their burden of proof anyways?

It really hurts a local business when a deadbeat contractor runs up an account of 5, 6 or 7 thousand dollars and then skips out on the bill. It should be prosecuted. Bravo to the Raleigh County Prosecuting Attorney.

You can read the full article here.

– John H. Bryan, West Virginia Attorney.

Greenbrier County “Cattlegate” Sentencing This Month

I have been asked many times recently what has happened with this case. Well, nothing has really happened since the sentencing has not yet taken place. The sentencing for these crooks will take place on June 30, 2008 before U.S. District Judge Thomas E. Johnston. There are also several civil cases currently pending in this matter, which undoubtedly will be detailed in the future.

You can read my previous post here.

– John H. Bryan, West Virginia Attorney.

Police Chief Has Wife Arrested By Buddy Law Enforcement Officer

This is a story that I will detail in a later post if need be, but it rises to the situation where the public should be informed of this massive abuse of authority.

A southern West Virginia Chief of Police, who is a big guy and also a military veteran, had his little wife arrested by a buddy law enforcement officer for “domestic assault,” taken into physical custody, after which she was able to bond out with a $5,000 cash bond. For those of you who don’t know, $5,000 is the average bond for felonies in southern West Virginia.

This police chief then filed for divorce and refused to drop the frivolous criminal charge against her unless she agreed to his terms for the divorce. This story is continuing and may be updated based on future actions taken by the law enforcement officer.

– John H. Bryan, West Virginia Attorney.

Wrongful Death Suit Filed Against Raleigh County Sheriff and Deputies

From the Register-Herald this morning:

A wrongful death lawsuit filed late Monday afternoon claims members of the Raleigh County Sheriff’s Department acted negligently when they shot and killed a Cabell Heights man who was firing a high-powered weapon in the early morning hours of July 4, 2006.

Filed by Charleston attorneys Michael A. Olivio and Travis A. Griffith on behalf of Mary Webb, the widow of Robert Webb, the suit lists defendants as the Raleigh County Sheriff’s Department, the Raleigh County Commission, Sheriff Danny Moore, then-Chief Deputy Steve Tanner, Deputy Greg S. Kade and Deputy John E. Hajash.

According to Register-Herald files and the complaint, Kade and Hajash were responding to a complaint that Robert A. Webb, 44, was playing loud music and shooting an AK-47 assault rifle outside his Cabell Heights home.

According to the lawsuit, Webb was discharging his firearm in celebration of his birthday and the Fourth of July holiday, but more than 30 minutes had elapsed between the firing of the weapon and the arrival of Kade and Hajash at the Webb residence.

The suit also claims “numerous residents within the neighborhood” were also firing weapons in celebration of the holiday and that Webb never fired his gun to threaten or endanger anyone.

The complaint claims Kade and Hajash parked away from the residence, out of sight, and approached on foot “while using cover to conceal their presence.” It also claims Kade took an assault shotgun from their patrol vehicle instead of his service standard handgun in spite of the fact the call was considered a “non-emergency nuisance call.”

When the deputies arrived on the scene at approximately 1 a.m., Webb was not shooting; still Kade and Hajash remained concealed by a row of trees until they witnessed Webb turn away from them, “at which time they ran toward Robert Webb in order to close the distance between them,” according to the complaint.

“Deputies Kade and Hajash proceeded up the street toward Mr. Webb and shot Mr. Webb while he was standing in the driveway of his home,” the complaint reads. “Deputies Kade and Hajash failed to identify themselves as law enforcement officers prior to firing their fatal shots at Mr. Webb.”

Webb was hit in the head and knocked to the ground by an initial shot from a shotgun, according to the complaint. While he was on the ground, one of the deputies shot him again with a handgun.

The complaint also claims emergency medical personnel were denied immediate access to Webb by members of the Raleigh County Sheriff’s Department, who finished taking photographs before they allowed medical personnel to touch Webb.

Obviously there are two sides to every story, but if the allegations that are included in the complaint are true, then there were some real problems with the conduct of the law enforcement officers in this situation. Having formerly investigated pattern or practice police misconduct for the Department of Justice, the way these officers approached the scene jumps out at me as either gross negligence or reckless disregard for human life and proper police practices. First of all, shooting firearms into the air on the 4th of July is not an offense punishable by death. They should have approached in their cruisers with their emergency lights on. There was no allegation (apparently) that the victim was firing his weapon towards anyone else. It was obviously a 4th of July celebration. Secondly, the man was in his driveway, it was dark, and they sneaked up on him with a shotgun pointed at his face. It would have been understandable if the victim had shot at the officers. However, he did not – there apparently was no evidence that he attempted to shoot at them. It is uncontested that the victim never fired a shot. Having your head blown-off by a short-barrel shotgun is a pretty harsh way to die, and understandably, the family is looking to make the county pay.

Read the full article here.

– John H. Bryan, West Virginia Attorney.

Charges Expected in Kanawha County Hunting Death

From the Charleston Gazette today:

Charges are expected to be filed against 19-year-old Andrew S. Hardin, of St. Albans, who allegedly shot and killed Nicholas Lee Caldwell while hunting turkey on Tuesday, state Division of Natural Resources investigators said.

Caldwell, 16, was in a wooded area off Kanawha Street near St. Albans when he was hit by shotgun pellets at about 8:30 a.m., said Hoy Murphy, spokesman for the DNR, which is investigating the incident.

People near the scene told investigators they saw 19-year-old Andrew S. Hardin, of St. Albans, hunting in the area. In an interview with officers, he later confessed he was the shooter, DNR officials said.

As in many other cases, usually the cover-up is more serious than the original crime. What if the victim was alive after the shooting and the shooter left him to die? In that case, he should face murder charges. The autopsy, which will almost positively take place, should indicate whether or not it was an immediate death.

The victim was hunting on private land near his home and he had permission to be hunting there. The shooter however, at least according to the article, appears not to have had permission to be hunting on this land. This is absolutely disgusting to me. As an avid turkey hunter, I have hunted around many other people, and almost every single one of them takes the proper safety precautions. Anyone who can’t tell the difference between a turkey and a hunter ought not to be in the woods in the first place. Furthermore, since this person was likely trespassing, he ought to go to prison for this.

You can read the entire article here.

– John H. Bryan, West Virginia Attorney.

Another Lawsuit Filed in Cattle/Bank Scam Case

From the Register-Herald:

Another lawsuit filed against bank, officials in alleged cattle fraud case

By Christian Giggenbach
Register-Herald Reporter

LEWISBURG — Another lawsuit has been filed against First National Bank of Ronceverte and two former bank officials, this time by an Illinois man who alleges disgraced cattle broker Kevin Scott O’Brien defrauded him out of $104,000.

The lawsuit, filed by Robert Dwyer, named First National Bank, former bank president Charles A. Henthorn and former board director **** as defendants.

Henthorn and **** recently pleaded guilty in federal court, Henthorn for taking $10,000 in bribes from O’Brien, and **** for setting up bribes.

O’Brien pleaded guilty to a mail fraud charge involving the sale of cattle in fraudulent Ponzi schemes. A sentencing date has not been set for any of the defendants.

Dwyer claims he gave O’Brien $104,000 in February 2006 for “80 pairs of heifers and their calves,” which should have been shipped to Dwyer’s farm in Carthage, Ill.

“Instead of arranging for the cattle to be trucked to Dwyer … O’Brien sold the cattle to ****,” the lawsuit said. “O’Brien’s sale of the Dwyer cattle to **** was simply one of the last acts of fraud and deceit in O’Brien’s continuing scheme.”

Dwyer claims the bank knew about the **** deal, but looked the other way because O’Brien owed the bank money.

“The bank, through its senior management, including Henthorn and ****, devised a scheme with O’Brien pursuant to which O’Brien would sell **** cattle,” the lawsuit said. “The money that **** paid for the cattle was to be deposited into O’Brien’s checking account in satisfaction of debts that O’Brien owed the bank.”

Dwyer is seeking punitive damages on the basis of fraud, civil conspiracy, and aiding and abetting a wrongful act, among other charges.

Dwyer is being represented by Charleston lawyer James W. Lane.

Neither **** nor Henthorn could be reached for comment.

In February, another Illinois man, Frederic W. Nessler, filed a $340,000 lawsuit against the same three defendants alleging fraud.

O’Brien, who is currently mired in a multimillion-dollar bankruptcy, wasn’t named as a defendant in either suit.

— E-mail: cgiggenbach@register-herald.com

Dirtbag Door-to-Door Vacuum Salesman Conns Elderly Lady into Buying SUV

From the Register-Herald:

Man charged with conning 82-year-old

What a piece of trash this guy is. He gives a bad name to door-to-door vacuum salesmen everywhere. Shouldn’t there be some liability on the part of the car dealership? They were so eager to make a sale that they ignored an obvious problem. I would be interested to see an interrogation of this car salesman who allowed this to happen. There may not be any criminal liability, but there must be civil liability for negligence at the very least. – John H. Bryan, West Virginia Criminal Defense Attorney.

Deputies say $70,000 SUV purchased in scam

By Amelia A. Pridemore
Register-Herald Reporter

Raleigh County sheriff’s deputies say a Daniels man conned an 82-year-old woman into buying him a $70,000 SUV.

Steven Mitchell Cox, 30, of Daniels, is charged with obtaining property by false pretenses, according to Deputy J.L. Redden. Cox was taken into custody Thursday and released on $50,000 bond set by Magistrate Charles Humphrey.

Cox took the woman from Daniels to Beckley Auto Mall on Feb. 15, Redden said, and convinced her to sign for a 2008 GMC Yukon. Cox had told her she would simply be co-signing for the vehicle to help him establish credit, Redden said.

Cox also told staff at Beckley Auto Mall the woman was his grandmother and she wanted to buy him a vehicle, Redden said. Neither statement was true. Cox is not related to the woman, who signed and financed the Yukon.

It left the woman more than $70,000 in debt, Redden said.

Cox took the vehicle and all the paperwork, then kept it, Redden said. The woman discovered she had actually purchased the vehicle when she received registration forms from the state Division of Motor Vehicles.

The woman and Cox met through a business transaction when Cox was going door-to-door selling vacuum cleaners, Redden said. Cox also started a home improvement project for the woman that he never finished.

— E-mail:

apridemore@register-herald.com